SZHAO v Minister for Immigration
[2007] FMCA 1920
•5 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHAO v MINSITER FOR IMMIGRATION & ANOR | [2007] FMCA 1920 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of Refugee Review Tribunal decision affirming decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons that she is a Falun Gong practitioner – no jurisdictional error – privative clause decision. |
| Migration Act 1958 (Cth), ss.424A, 425, 474(2) Migration Regulations Act 1994 (Cth) |
| Applicant: | SZHAO |
| First Respondent: | MINSITER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2418 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 November 2007 |
| Date of Last Submission: | 5 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms Quinn |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent in the fixed sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2418 of 2007
| SZHAO |
Applicant
And
| MINSITER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision by the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was signed on
12th June 2007and handed down on 5th July.
The applicant is a citizen of the People's Republic of China who arrived in Australia on 13th October 2004. She applied to the Department of Immigration and Citizenship, to use its current title, for a protection (Class XA) visa on 29th November 2004.
On 19th February 2005, a delegate of the Minister refused to grant the applicant a visa. The applicant sought review of the delegate's decision from the Refugee Review Tribunal. The Tribunal, differently constituted, affirmed the delegate's decision on 6th July 2005.
The applicant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. On 23rd March 2007 the Court set aside the Tribunal decision, by means of consent orders made by Lloyd‑Jones FM. The Court remitted the matter to the Tribunal to be determined according to law.
On 12th April 2007 the Tribunal wrote to the applicant inviting her to provide any further documents or written arguments she wished the Tribunal to consider which she had not already provided.
The applicant did not send the Tribunal any further documents or written arguments.
The Tribunal wrote to the applicant on 19th April inviting her to appear before it to give oral evidence and present arguments.
On 15th May 2007 the applicant responded to the invitation to attend the hearing indicating that she wished to attend and would require a Mandarin interpreter. The applicant attended the hearing on 17th May 2007 and gave evidence.
On 5th July 2007 the Tribunal affirmed the refusal of her visa application. At the hearing the Tribunal noted that the applicant claimed to be a Falun Gong practitioner who had been dismissed from her employment and threatened with gaol if she continued to practise. The applicant claimed that she was unable to find employment in China before she left for Australia. She stated that she was threatened by the Chinese authorities and because of this she practised Falun Gong at home. The applicant stated that she did not wish to give up practising Falun Gong.
The Tribunal's findings and reasons can be found in the Court Book at pages 131 to 133. The Tribunal considered that it is significant that the applicant was unable to state when questioned about the importance of Falun Gong to her, and that it was important for any other reason than her health. The Tribunal considered the applicant's evidence to be inconsistent with her claim that she was a Falun Gong practitioner. The Tribunal noted that the applicant was unable to provide any details regarding the importance of Falun Gong to her, or provide reasons for wishing to practise Falun Gong, despite the Chinese Government's opposition.
The Tribunal did not accept the applicant's claim that she left China because she feared harm due to her practise of Falun Gong, and that she wished to practise in Australia but was unwilling to seek out fellow practitioners or practise freely in Australia. The Tribunal also did not accept the applicant's claims in relation to her visit to Korea in 2003. The Tribunal did not accept that the reason for the applicant's dismissal from her employment was due to her practise of Falun Gong or that she was investigated or questioned by the authorities. The Tribunal also did not accept that the applicant or her family were discriminated against because of her practise of Falun Gong.
The Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if she were to return to China.
The applicant filed an application in this Court on 6th August 2007 seeking the following orders:
1.A writ of Certiorari quashing the decision of the Refugee Review Tribunal;
2.An order that the Refugee Review Tribunal consider the matter according to law; and
3. An order for costs.
The application contains three grounds of review:
1.Procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed;
2.The decision involved an important exercise of the power conferred by the Migration Act and Regulations; and
3.There was no evidence or other material to justify the making of the decision.
The applicant attended the hearing at the Court today and I asked her to provide further details about her three grounds. In relation to the first ground being a claim that the procedures were not observed, the applicant replied that she did practise Falun Gong for her health.
The second ground appears to me to be no more than a restatement of the first ground implying a claim of a breach of either the Migration Act or the Migration Regulations. The applicant told the Court that she practised Falun Gong by herself at home and asked rhetorically if she had to attend demonstrations or practise in public in order to prove her case. In respect of the applicant's third ground, the applicant told the Court that she did mean that it was up to the Tribunal to find evidence which would justify its refusal of her application.
In her submissions in general, the applicant reiterated that she was a Falun Gong practitioner and was still practising. She said that she was unable to provide evidence of her practise of Falun Gong which was always in private.
For the respondent, Ms Quinn, solicitor, told the Court that the applicant's first two grounds were, essentially, challenges to the Tribunal's factual findings and submitted that the Court was a judicial review body and could only interfere if jurisdictional error had been proved. She submitted that the Tribunal had considered the applicant's evidence for both Tribunal hearings and was not satisfied that the applicant had made out her case that she was a Falun Gong practitioner who feared harm upon her return to China. Ms Quinn submitted that this was a conclusion reasonably open to the Tribunal on the evidence and thus there were no grounds for the Court to interfere in the findings.
The applicant, in reply, indicated that she did not agree with the submissions made on behalf of the Minister.
I am of the view that the applicant's first and second grounds are, essentially, one ground, namely a claim that the Tribunal failed in some way to comply with either the Migration Act or the Migration Regulations. There is no particularisation of that claim and the applicant's submissions went only towards her factual claims, and thus an invitation to the Court to embark upon a process of merit's review.
I am mindful of the fact that the applicant is not legally represented and I therefore conducted my own examination of the decision in order to ascertain whether any breach of the Migration Act or the Migration Regulations had been made out or was at least arguable.
I am not satisfied that there is any breach. The Tribunal clearly complied with the requirement of s. 425 of the Act in inviting the applicant to attend a hearing. The applicant attended the hearing and gave evidence with the assistance of an interpreter. There was no suggestion that the interpreting was in any way inadequate or that the applicant was not able to present her case to the Tribunal.
The Tribunal decided the matter on the basis that it was not satisfied that the applicant had made out her case that she had a well founded fear of persecution as a Falun Gong practitioner because the Tribunal was not satisfied that she had made out a case that she was a Falun Gong practitioner. This was the central issue to be decided and the applicant was given, in my view, an ample opportunity, in my view to argue that matter before the Tribunal. There is no breach of s. 425 of the Act. There was no breach of s. 424A of the Migration Act.
There is no breach of any of the Migration Regulations that I can discern. It follows that the applicant's first two grounds will not succeed.
The applicant's third ground is misconceived in that it relies on the belief that the Tribunal must have sufficient evidence to disprove an applicant's claim. That is not the case.
As was submitted by Ms Quinn, on behalf of the Minister, the Tribunal cannot make a decision in the applicant's favour unless it is satisfied that the applicant has a well founded fear of persecution for a Convention reason. It does not need evidence to find that it is not satisfied, and it is for the applicant to make her case, or his case before the Refugee Review Tribunal. Here the Tribunal was not satisfied as to the credibility of the applicant's claim to be a Falun Gong practitioner. This was a finding of fact reasonably open to the Tribunal on the evidence before it and is not therefore a finding that should be overturned on judicial review. In my view that submission was correct.
The applicant, essentially, sought to re-argue the merits of her claim on a factual basis. But this is not open on judicial review.
Essentially, this matter was decided by the Tribunal on the basis of credibility and credibility is a finding of fact and is strictly a matter for the Tribunal. I am not satisfied that any jurisdictional error has been made out. It follows that the Tribunal decision is a privative clause decision as defined by s. 474(2) of the Migration Act. Because it is a privative clause decision is it final and conclusive and it is not subject to orders in the nature of certiorari or mandamus.
Where an applicant does not succeed, the Minister seeks an order from the Court that the applicant should be responsible for the Minister's legal costs in defending a claim. In this case the costs have been estimated at $3,000.00. That is below the amount provided by the Court rules. I am satisfied that this is a matter for an order for costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 15 November 2007
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